Agenda - Planning Commission - 09/03/2009

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/) "'-----,. i( Zoning Bulletin July 10, 20091Vo!ume 31 No. 13 laundromat on his property in reliance on the invalid building permit. The court explained that, in New York, a landowner could acquire a vested right in a legally issued permit when he or she showed: "a commitment to the. purpose for which the purpose was granted by effecting substantial changes and incurring substantial expenses to further the development." However, said the court, a landowner could not acquire vested rights in re- liance upon an invalid permit-even where the results were harsh. The court found that here, the building permit issued to Nunez was invalid. This was because, at the time the permit was issued, a laundro- mat was no longer a legal conforming use in the town in light of Town Code ~ 70-209 and the Amendment. Since the building permit was in- valid, the court concluded that Nunez did not acquire a vested right to maintain a laundromat on his property. Nunez had argued that, nonetheless, the court should find he had such a vested right under the "special facts" exception. The court dis-. agreed. Under the "special facts" exception, a court would not apply the zoning ordinance currently in existence if "special facts" were present that showed that the mUnlcipality: acted in bad faith and unduly delayed acting upon an application while the zoning law was being changed. Here, the court found that Nunez failed to show that the town had acted in bad faith or unduly delayed action on his permit application. Here, his permit had issued approximately two months after he made his applica- tion. The court concluded that since Nunez did not have a vested right to maintain the laundromat, he could only operate the laundromat if he was granted a use variance. The coUrt held that the BZA's denial of Nunez's requested variance was proper. To qualify for a use variance, Nunez had to show, among other things, that: his property could not yield a reasonable monetary re- turn if used only for permitted purposes as it was currently zoned. Here, the coUrt found that Nunez failed to show that he would be unable to re- ceive a reasonable return if he personally operated a conforming business or rented the premises to a conforming business. See also: Natchev v. Klein, 41 N.Y.2d 833, 393 N.Y.S.2d 400, 361 N.E.2d 1048 (1977). See also: Greene v. Zoning Bd. of Appeals of Town of [slip, 25 A.D.3d 612, 806 N. Y.S.2d 880 (2d Dep't 2006). Case Note: The coUrt further explained that a use variance would not be granted just because the zoning ordinance prohibited the highest and best use of the land. Nor would a variance be granted just because the variant use (i.e., the use the variance seeks) would yield a higher return that those permitted by the zoning ordinance. @ 2009 Thomson Reuters 5 47